Citation Nr: 21007949 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 14-32 507 DATE: February 11, 2021 ORDER Entitlement to service connection for degenerative joint disease, L4-5 status post laminectomy, is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran’s favor, his degenerative joint disease, L4-5 status post laminectomy, was incurred in active service. CONCLUSION OF LAW The criteria for entitlement to service connection for degenerative joint disease, L4-5 status post laminectomy, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1970 to August 1976. The matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ) in August 2016. The hearing transcript is of record. The Board remanded the claim in April 2018 and March 2020 for further development by the RO. The case has been returned to the Board for further appellate action. 1. Entitlement to service connection for degenerative joint disease, L4-5 status post laminectomy Resolving reasonable doubt in the Veteran’s favor, the Board finds that the Veteran has a diagnosis of degenerative joint disease, L4-5 status post-laminectomy, that is related to in-service back injuries and complaints of low back pain, thus warranting an award of service connection. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. § 3.303(a). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The record in this case is clear as to whether the Veteran has a diagnosis of degenerative joint disease, L4-5 status post-laminectomy. See September 2010, February 2019 VA examinations. Thus, the first element of service connection, the existence of a current disability, is satisfied. Concerning the in-service event, illness, or injury, the Veteran’s STRs show multiple complaints of low back pain in October 1971, November 1971, and July 1972. The November 1971 record notes the back pain began after a fall. A December 1971 treatment record notes lumbarization of the first sacral segment. A June 1972 treatment record notes lumbosacral sprain. Another June 1972 treatment record notes some sclerosis around the sacroiliac joints bilaterally. The Veteran has competently and credibly testified that while in service he experienced back injuries and low back pain. The pain was caused or exacerbated by certain assignments such as moving batteries weighing up to one thousand pounds and using heavy equipment to include jackhammers on a daily basis for months at a time. See June 2011 Statement in support of case; August 2016 Board hearing. As the first and second elements of the service connection analysis were satisfied, the remaining question before the Board was whether there was a nexus with service. A September 2010 VA examiner opined that the back disability was less likely than not related to service, as the in-service back complaints responded to treatment and a separation examination noted no abnormalities. The current disability is more likely due to aging and an active lifestyle. In November 2016, the Veteran submitted a medical opinion from E.J., a registered nurse, who opined that his chronic back pain may be secondary to an accident he experienced while on active duty. The Veteran testified that this opinion was authored by his current physician’s assistant. See August 2016 Board hearing; see also VA treatment records dated 2015 to 2019, indicating that E.J. has been involved in the Veteran’s VA care. However, the Board found the opinion fails to meet the required evidentiary standard because “may” is too speculative upon which to base a grant of service connection. See April 2018 Board remand. Based on the first two elements of service connection being satisfied, the Board twice throughout the pendency of this claim sought a competent medical opinion regarding whether there is a causal relationship between the current back disability and the in-service back injuries or complaints of back pain. The Board finds that none of the opinions of record adequately address the Veteran’s lay statements regarding heavy lifting and handling heavy equipment. The December 2019 VA examiner noted, without more, that the Veteran reported injuring himself twice, once while doing manual labor. The examiner opined that the back disability was less likely than not incurred in service. The examiner stated that the significance of these injuries is not known, but it does not appear that they were severe or incapacitating injuries. Moreover, the current back disability was revealed more than 20 years after service. As the examiner did not address the positive nexus opinion by E.J., the Board remanded to obtain an addendum opinion. See March 2020 Board remand. In the March 2020 and August 2020 addendum opinions, the examiner reaffirmed the original opinion, noting that E.J.’s opinion was unsupported by any information and that E.J. is a nurse rather than a physician. The Board affords the December 2019 VA medical opinion, March 2020 addendum, and August 2020 addendum little probative weight because the examiner failed to address the Veteran’s competent and credible assertions of back pain following heavy lifting and regular use of heavy equipment. The Board notes that an opinion may not be discounted merely because the author is a registered nurse. See Cox v. Nicholson, 20 Vet. App. 563 (2007). Furthermore, the examiner did not address all potentially favorable medical evidence, namely, the multiple STRs noting back pain, lumbarization, and sclerosis. The examiner did not address whether these had any etiological relationship to the current back disability. See January 2021 Appellate brief. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. In conclusion, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s back disability had its onset during active service. Accordingly, the Board must resolve reasonable doubt in the Veteran’s favor and finds that service connection for a back disability, currently diagnosed as degenerative joint disease, L4-5 status post laminectomy, is warranted. 38 U.S.C. § 5107 (b); 39 C.F.R § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Minaya, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.